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State of Nebraska, appellee,

v. Talon J. Lee, appell

___ N.W.2d ___

Filed October 11, 2019. No. S-18-702.

1. Rules of Evidence: Other Acts: Appeal and Error. An appellate court 

reviews for abuse of discretion a trial court’s evidentiary rulings on the 

admissibility of a defendant’s other crimes or bad acts under Neb. Evid. 

R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), or under the 

inextricably intertwined exception to the rule.

2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

4. Effectiveness of Counsel: Appeal and Error. In reviewing claims of 

ineffective assistance of counsel on direct appeal, an appellate court 

decides only whether the undisputed facts contained within the record 

are sufficient to conclusively determine whether counsel did or did not 

provide effective assistance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance.

5. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

6. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

7. Rules of Evidence: Other Acts. Inextricably intertwined evidence 

includes evidence that forms part of the factual setting of the crime, is 

so blended or connected to the charged crime that proof of the charged 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/18/2019 01:06 AM CDT
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crime will necessarily require proof of the other crimes or bad acts, 

or is necessary for the prosecution to present a coherent picture of the 

charged crime.

8. ____: ____. The State is entitled to present a coherent picture of the 

facts of the crime charged, and evidence of other conduct that forms 

an integral part of the crime charged is not rendered inadmissible 

under Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2016), 

merely because the acts are criminal in their own right, but have not 

been charged.

9. Jury Instructions: Proof: Appeal and Error. In an appeal based on 

a claim of an erroneous jury instruction, the appellant has the burden 

to show that the questioned instruction was prejudicial or otherwise 

adversely affected a substantial right of the appellant.

10. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal.

11. ____: ____. Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower court’s 

decision.

12. Sentences: Appeal and Error. When a trial court’s sentence is within 

the statutory guidelines, the sentence will be disturbed by an appellate 

court only when an abuse of discretion is shown.

13. Judgments: Words and Phrases. Abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

14. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the 

defendant’s demeanor and attitude and all the facts and circumstances 

surrounding the defendant’s life.

15. Effectiveness of Counsel: Appeal and Error. When a defendant’s 

trial counsel is different from his or her counsel on direct appeal, the 

defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from 

the record.

16. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his 

or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.
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17. ____: ____. To show deficient performance in a claim of ineffective 

assistance of counsel, a defendant must show that counsel’s performance 

did not equal that of a lawyer with ordinary training and skill in criminal law.

18. ____: ____. To show prejudice in a claim of ineffective assistance of 

counsel, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding 

would have been different.

19. Effectiveness of Counsel: Records. Trial counsel cannot be ineffective for failing to do that which the record affirmatively establishes 

was done.

20. Hearsay. Statements are not hearsay if they are offered to show the 

effect on the listener.

Appeal from the District Court for Douglas County: Gary B.

Randall, Judge. Affirme

Stephen P. Kraft for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg,

Freudenberg,

I. NATURE OF CASE

Defendant was charged with two counts of sexual assault 

of a child in the first degree, one count of attempted sexual 

assault of a child in the first degree, one count of sexual assault 

of a child in the third degree, and one count of incest with 

a victim age 17 or under. After trial, a jury found defendant 

guilty and convicted him on all charges. The district court 

sentenced him to an aggregate period of 100 years’ to life 

imprisonment, plus an additional imprisonment term of 32 to 

73 years. Defendant appeals his convictions and sentences. 

On appeal, defendant assigns a number of evidentiary errors, 

including errors involving Neb. Evid. R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2016) (Rule 403); Neb. Evid. R. 404, Neb. 

Rev. Stat. § 27-404 (Reissue 2016) (Rule 404); and Neb. Evid. 
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R. 412, Neb. Rev. Stat. § 27-412 (Reissue 2016) (Rule 412). 

Defendant also alleges that the district court inappropriately 

instructed the jury regarding venue in this case. We affirm the 

decision of the district court.

II. FACTS

1. Charge

On September 19, 2017, the State of Nebraska charged 

Talon J. Lee with two counts of sexual assault of a child in 

the first degree, a Class IB felony; one count of attempted 

sexual assault of a child in the first degree, a Class II felony; 

one count of sexual assault of a child in the third degree, a 

Class IIIA felony; and one count of incest with a victim age 17 

or under, a Class IIA felony. The charges arose from reports of 

Lee’s sexual abuse against R.W., Lee’s 10-year-old daughter, 

and another girl, M.B., who was 9 to 10 years old at the time 

of the alleged abuse. Lee pled not guilty to the State’s charges, 

and the case proceeded to trial.

2. Motion in L

Prior to trial, the State made a motion in limine seeking 

to admit at trial evidence of a sexual assault of R.W. that 

occurred in Iowa shortly after the incidents of sexual assault 

of R.W. and M.B. being charged in this case. Specifically, 

the State wished to introduce at trial witness testimony as to 

R.W.’s statements that Lee sexually penetrated her, made her 

“play with his private part,” and showed her pornographic 

videos at Lee’s Iowa home approximately 3 months after the 

incidents occurring in Nebraska. The State’s motion alleged 

that this evidence was relevant and admissible because it was 

inextricably intertwined with Lee’s current charges and, thus, 

not subject to Rule 404. Alternatively, the State alleged the 

testimony was admissible under Rule 404(2) and Neb. Evid. 

R. 414, Neb. Rev. Stat. § 27-414 (Reissue 2016) (Rule 414). 

The State withdrew its argument regarding Rule 414, however, prior to the hearing. The defense claimed that the Iowa 

incident should be excluded because, unlike other incidents 
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found to be admissible under our case law as inextricably 

intertwined, the Iowa assault was not one continuous chain of 

events. Further, defense counsel pointed out that according to 

R.W.’s allegations, the incident in Iowa was the last incident to 

occur. So, according to the defense, the Iowa incident formed 

no part of the factual setting of the Nebraska charges and was 

not inextricably intertwined.

The district court granted the State’s motion, ultimately 

entering two orders on the matter. In its first order, entered 

March 19, 2018, the court found that the Iowa incident was 

relevant and material to the State’s charges. As such, the district court concluded that the evidence related to the Iowa incident was inextricably intertwined to the State’s charges. In the 

alternative, the district court concluded that the evidence of the 

Iowa incident was admissible under Rule 414.

Subsequently, the district court entered a second order nunc 

pro tunc to its previous order, where it removed its analysis 

and conclusion relating to Rule 414, but reaffirmed its finding 

that the evidence was inextricably intertwined. In doing so, the 

district court stated:

[T]he evidence of sexual abuse in Council Bluffs[,] Iowa 

is inextricably intertwined with the other allegations of 

sexual abuse [Lee] perpetrated on his daughter over the 

period of time alleged by the State and is so blended or 

connected to the charged crimes that it will be necessary to show a complete and coherent picture of this 

relationship.

3. Lee’s Rule 412 Mo

Lee filed a pretrial motion to obtain permission to adduce 

testimony about R.W.’s having been sexually abused in the 

past by her biological brother. According to Lee’s motion, 

this evidence was relevant to show that someone other than 

the accused was the “source of injury” to R.W. Lee’s motion 

alleged that such evidence was admissible under Rule 412 and 

that the exclusion of such evidence would “violate [his] constitutional rights.”
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At the hearing on Lee’s Rule 412 motion, Lee asserted that 

during the investigation in this case, R.W. disclosed that she 

was sexually abused by her brother at some point around 2016, 

when she was approximately 10 years old. R.W. reportedly 

indicated that her brother tried to penetrate her with his penis 

in the same way that Lee did. Lee acknowledged that R.W.’s 

brother had not been adjudicated of the allegations, but noted 

that there was a juvenile proceeding pending against him pertaining to these allegations.

Lee argued that this alleged prior sexual assault of R.W. 

was relevant to show how R.W. had a “prior source of 

sexual knowledge.” In other words, Lee explained, the jury 

would likely be wondering how R.W., as a 10-year-old child, 

could possess the type of sexual knowledge she has if she 

was not sexually abused by Lee. The fact she has been sexually abused by her brother in the past would show why she 

has such knowledge and that it came from a source other 

than Lee.

The State disagreed and argued that this evidence was 

inadmissible and improper because it would lead to a credibility debate regarding R.W.’s allegations in the separate and 

unrelated matter, which would create “a trial within a trial.” 

Based on this, the State argued that any probative value of 

the incident would be outweighed by the danger of unfair 

prejudice.

The district court denied Lee’s motion and ruled that the 

evidence at issue was inadmissible. The district court entered a 

written order on the matter, which concluded:

There is no evidence the acts of [R.W.’s brother] have 

any relevance to the sexual assault committed by [Lee] 

or that the sexual behavior of R.W. incident to being 

assaulted by [her brother] in any way contributed to any 

physical injury of R.W. The court does not find the same 

to be relevant nor material to the charges against [Lee] 

nor would exclusion of this evidence violate the constitutional rights of [Lee].
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4. Tria

At trial, the State elicited testimony from both victims; the 

victims’ mothers; several members of law enforcement from 

both Omaha, Nebraska, and Iowa; and a physician who examined R.W. The State also called witnesses employed by Project 

Harmony, a child advocacy center that serves children when 

there have been allegations of abuse, who were involved in 

the investigation. The Project Harmony employees included a 

pediatric nurse who examined and interviewed R.W. and M.B. 

and a forensic interviewer who examined and interviewed 

R.W. and M.B. The defense offered testimony from Lee’s wife, 

Nikisha Lee.

(a) Incidents

Testimony from R.W., M.B., and the victims’ mothers established the following facts.

From the fall of 2016 to the spring of 2017, Lee was living 

with Nikisha in Council Bluffs, Iowa. R.W. lived with Lee and 

Nikisha in November and December 2016. Aside from those 2 

months, R.W. lived in Omaha with her mother.

The victims’ mothers testified that they knew each other 

because they both have children with Lee. Lee fathered at 

least one of M.B.’s siblings. R.W. would often spend time with 

M.B. and her siblings. Lee would occasionally watch R.W. 

and M.B. when he was in Omaha, which is when the alleged 

incidents occurred. Lee was 29 years old at the time of the 

alleged incidents.

After R.W. moved back to Omaha to live with her mother, 

R.W. and her mother stayed for a few weeks with one of 

R.W.’s mother’s friends, Jasmine Kelly. One night at approximately 5 p.m., while they were staying with Kelly, Lee arrived 

unannounced and took R.W. to a store. When Lee and R.W. 

were leaving for the store, R.W.’s mother also left to run an 

errand. R.W.’s mother testified that this errand took about 30 to 

45 minutes. When she returned to Kelly’s house, Lee and R.W. 

were still gone. R.W.’s mother testified that she called Lee to 

find out where they were, because it was a school night and 
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R.W. needed to get home. Lee responded that they were “down 

the street” and would be home soon. As more time passed and 

Lee and R.W. still were not home, R.W.’s mother continued to 

call Lee. R.W.’s mother testified that she called Lee roughly 50 

times that night and that Lee answered only a couple of those 

calls. Lee eventually brought R.W. home around midnight.

R.W. testified that after she and Lee left Kelly’s house that 

night, Lee drove her to a “dark place” where there was a building with gates and a “bunch of trees.” Lee parked the car and 

asked R.W., “Can you do me a favor?” R.W. agreed, and Lee 

proceeded to suck on her finger and say “‘no teeth.’” Lee then 

asked her to suck his “private part” and told her he would 

take her to the store afterward. Lee put his “private part” in 

her mouth, and she sucked on it until “[s]ome stuff” went into 

her mouth, which she said tasted “[n]asty.” R.W. testified that 

her mother called Lee’s cell phone several times but Lee told 

her not to answer it, so she did not. Lee also told her not to 

tell anyone about what happened. He took her to the store and 

eventually back to Kelly’s house. R.W. testified that she did not 

tell anyone what happened when she got back to Kelly’s home, 

because she was scared.

R.W. testified that another incident of abuse occurred when 

she was having a sleepover with M.B. at M.B.’s house. R.W. 

and M.B. woke up when they heard a deep voice downstairs. 

The girls went downstairs and learned that the voice was Lee’s. 

R.W. and M.B. then sat on the couch and started playing “Truth 

or Dare.” Eventually, Lee sat between them and told the girls 

that they were going to play “Dirty Truth or Dare.”

R.W. testified that Lee made M.B. do the first dare and told 

her to suck his “private part” and said, “[Y]ou got to wake him 

up,” referring to his penis as “him.” Lee told M.B. to “play 

with it” to “wake it up,” and she complied. Lee told her to 

suck it, and it “got bigger in her mouth.” Then, according to 

R.W., while M.B. was sucking on Lee’s penis, Lee told R.W. 

to pick a dare, which she did, and he “made me play with it 

while she was sucking it.” Lee then had R.W. and M.B. take 
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turns sucking it. R.W. testified that as this was going on, Lee 

also played a video on his cell phone of “[a] girl sucking a boy 

private part.”

M.B., through her testimony, confirmed that she and R.W. 

played a game of “Dirty Truth or Dare” with Lee in her basement the morning after R.W. spent the night. She testified that 

when she or R.W. would pick a dare, he would ask them to 

suck his “private part” or to lick each other’s “boobs,” but that 

they said no. Then, he asked R.W. “to let him finger her,” but 

R.W. again said no. M.B. said she and R.W. went upstairs for 

a while. When they came back downstairs, Lee was on his cell 

phone “watching porn,” which she described as girls with no 

clothes touching each other and doing “nasty things.” Then, 

according to M.B., Lee pulled R.W. over next to him and told 

R.W. to “lick his private part,” which R.W. did. M.B. stated 

that Lee then made M.B. move her hand up and down on his 

penis. M.B. testified that Lee also asked her to suck his penis 

but that she said no.

R.W. and M.B. testified that on another day at M.B.’s house, 

they played “Hide and Seek” with Lee. When Lee found where 

R.W. and M.B. were hiding, he told them to kiss each other. 

Lee wanted them to kiss on the lips or to put their tongues 

in each other’s mouths, but they kissed on the cheek instead. 

R.W. testified that Lee also made them strip down to their 

underwear and a tank top and that he touched both of them on 

the buttocks.

According to R.W. and M.B, on one of the same days that 

they played “Truth or Dare” or “Hide and Seek,” Lee called 

R.W. and M.B. into M.B.’s mother’s bedroom, where Lee was 

lying on the floor next to the bed. Lee asked the girls to “sit 

on his private part,” which neither of them did. According to 

M.B., Lee then pulled R.W. toward him and had her sit on his 

stomach. R.W. testified that she thought Lee had his clothes 

on during this incident, but M.B. testified that he did not have 

any clothes on and recalled seeing his “private part” when 

this occurred.
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R.W. testified about another incident, involving only R.W. 

and Lee, which occurred at Lee and Nikisha’s house in Council 

Bluffs. R.W. testified that one day, when Nikisha was not 

home, Lee was lying on the bed in his bedroom and he called 

her into the room to ask for a “favor.” They watched another 

pornographic video, and Lee asked R.W. to play with his penis. 

R.W. complied. R.W. testified that Lee told her to take off her 

pants, which she did. Lee then stood up behind her and put 

his penis inside her buttocks and vagina. R.W. testified that it 

hurt, so she told Lee she needed to go to the bathroom, where 

she noticed that she was bleeding from her anus. When she 

told Lee about it, he told her to get into the bathtub. R.W. 

testified that this incident in Council Bluffs was the last time 

Lee did anything to her, although on cross-examination, she 

gave differing responses on the timeline of the sexual assaults. 

Lee objected to the evidence about the Council Bluffs incident 

on Rule 404 grounds. Lee received a continuing objection 

on these grounds to the testimony relating to the incident in 

Council Bluffs.

R.W. testified that she did not initially tell anyone about 

any of these incidents, because Lee had told her and M.B. that 

he would “make up a bad lie” about them if they ever did so. 

Later that summer, however, in June 2017, R.W. decided to 

tell M.B.’s aunt about what Lee had been doing to her while 

she was at M.B.’s mother’s house with M.B. M.B.’s aunt 

relayed this disclosure to M.B.’s mother, who, in turn, told 

R.W.’s mother.

R.W.’s mother testified that she got a call from M.B.’s 

mother on the night of June 22, 2017, while she was at work. 

R.W.’s mother immediately called R.W. and spoke with her 

about what she’d heard from M.B.’s mother. R.W.’s mother 

testified that when R.W. told her about the incident in Lee’s 

car, it all “ma[de] sense,” because she remembered “calling, 

calling, calling” Lee’s cell phone on the night he took R.W. to 

the store. R.W.’s mother called M.B.’s mother again after that, 
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because, based on what R.W. told her, it appeared the abuse 

also involved M.B.

R.W.’s mother testified that she left work that night to take 

R.W. to an emergency room. She said that after the abuse was 

revealed, R.W. started acting out at school and getting into 

fights, and that she eventually got “kicked out of school.”

On June 23, 2017, after speaking further with M.B., M.B.’s 

mother filed a police report regarding the sexual assault of 

M.B. M.B.’s mother testified that when she spoke with M.B. 

about what she had heard, M.B. started to cry and eventually 

told her things that had happened, which disclosure led to her 

decision to file a police report. M.B.’s mother confirmed that 

her house was in Omaha and said that she could recall three 

times that Lee came over to her house and watched the children in February and March 2017.

(b) Dr. Cynthia Hernandez

R.W. was seen at an emergency room in the early morning hours of June 23, 2017. The doctor who examined R.W., 

Dr. Cynthia Hernandez, testified that she spoke with R.W. 

about why she was there. R.W. told her that on one occasion, 

Lee put his penis in her mouth until “white stuff” came out, 

and that on another occasion, he put his penis in her vagina 

and anus, which caused her to bleed. Hernandez testified 

that R.W. told her that one of the incidents occurred about 

1 month earlier and the other about 2 months earlier. When 

Hernandez examined R.W., she did not find any signs of 

physical injury and referred R.W. to Project Harmony for a 

more detailed examination. Hernandez explained that this 

was not surprising given how much time had passed since 

the incidents. Hernandez also testified that, in general, it is 

not uncommon in cases of sexual assault for there to be no 

physical signs of trauma. However, on cross-examination, 

Hernandez agreed that signs of internal injury, especially with 

anal penetration, could possibly be detected months after an 

assault had occurred.
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(c) Law Enforcement

The State elicited testimony from several law enforcement 

officers who were involved in the joint investigation that was 

being conducted by the Omaha Police Department (OPD) and 

the Council Bluffs Police Department (CBPD).

Amber Kennedy, the lead detective for CBPD, testified 

that the date range for CBPD’s investigation was January 1 

to May 13, 2017. Kennedy described that Project Harmony 

had originally referred the case to CBPD. She had watched 

the video-recorded forensic interview and determined it contained evidence to show that a crime had been committed in 

Omaha and also in Council Bluffs. After reviewing all of the 

evidence, CBPD decided that OPD needed to be involved as 

well, because it appeared that their investigations would overlap. Kennedy testified that CBPD and OPD were aware of each 

other’s investigations and maintained communication throughout the investigations, which ultimately led to Lee’s arrest. 

Though it was asserted by Kennedy that charges have been 

filed in Iowa, there was no evidence presented of the charges 

and it was conceded that a trial had not occurred regarding the 

alleged incidents in Council Bluffs.

From OPD, the State examined Mark McKenna and Lisa 

Crouch. McKenna testified that he was the officer who took 

M.B.’s mother’s report of the sexual abuse of M.B. McKenna 

confirmed that M.B.’s mother identified Lee in her report. 

Upon the filing of the report, McKenna forwarded the investigation to the child victim sexual assault unit.

Crouch testified that she was a detective in the special 

victims unit, specifically the child victim sexual assault unit. 

Crouch testified that the date range of their investigation was 

January to March 2017. She stated that her involvement in this 

case began when an information report was generated through 

OPD indicating possible sexual abuse. Crouch stated that upon 

receiving that assignment, she received other information while 

observing a video-recorded forensic interview of R.W. by a 

forensic examiner at Project Harmony.
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(d) Project Harmony

(i) Amy Cirian

The State called Amy Cirian, a forensic interviewer at 

Project Harmony who interviewed R.W. and M.B regarding the reported assaults. Cirian testified as to R.W.’s and 

M.B.’s demeanors throughout the forensic interview. Cirian 

described R.W.’s demeanor as calm but a little nervous and 

“fidgety,” while M.B. was calm throughout most of her interview. Cirian opined that there is no singular demeanor that she 

would expect a child to have when discussing sexual abuse, 

because many children react differently. She noted further 

that it is not her role to determine the credibility or reliability 

of the girls’ statements or disclosures, but, rather, to simply 

gather information throughout the interview process as to the 

abuse allegations.

At the outset of this demeanor testimony, defense counsel 

objected on the basis of relevance, which was overruled by 

the district court. On cross-examination, defense counsel elicited testimony from Cirian that just as there is no particular 

behavior she can look to in order to determine whether a child 

has been sexually abused, there is no way of determining from 

behavior whether a child has not been abused.

Cirian also testified as to certain procedures and protocols 

that are followed throughout these interviews. Cirian’s testimony specifically detailed what actions were taken or what 

protocols were triggered in response to the girls’ disclosures. 

Cirian testified that per these protocols, she is required to meet 

with the multidisciplinary team only when there is a sexual 

assault disclosure made at the forensic interview. Cirian stated 

that she met with the multidisciplinary team after interviewing 

the girls.

(ii) Sarah Cleaver

R.W. and M.B. were examined by a pediatric nurse practitioner at Project Harmony. Both of their physical examinations came back normal with no signs of injury or sexually 
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transmitted diseases. The nurse practitioner, Sarah Cleaver, 

who has conducted over 1,000 sexual assault examinations, 

testified that it is normal to find no signs of physical injury in 

child sexual assaults, because children often do not disclose 

right away and their bodies heal very quickly. Cleaver testified that an estimated 95 percent of children who report sexual 

abuse have normal physical examinations.

Cleaver testified that during R.W.’s examination, R.W. indicated that Lee’s penis had been in her mouth more than once 

and that his ejaculate had been in her mouth. Cleaver also 

stated R.W. claimed that Lee had penetrated her anus with 

his penis one time and that he took the condom off and continued to penetrate her anus, but that there was no ejaculate. 

R.W. reported that bleeding followed after she was penetrated 

anally. Cleaver testified that R.W. reported that Lee penetrated 

R.W. vaginally while wearing a condom. Finally, Cleaver testified that M.B. indicated during her examination that Lee had 

touched her buttocks over her clothes and had made her touch 

his penis with her hand.

(e) Nikisha

After the State rested, Lee called Nikisha to testify. Nikisha 

confirmed that R.W. would occasionally stay with her and Lee 

between January and March 2017. She testified that when R.W. 

stayed with them in Council Bluffs, they always interacted as 

a family and Lee was never alone with R.W. at their home. 

The only interactions Nikisha observed between Lee and R.W. 

were normal father-daughter activities. Nikisha acknowledged, 

however, that Lee would occasionally go to Omaha without 

her to care for his other children and that he may have had 

contact with R.W. and M.B. at those times.

5. Jury Instruction Con

At the close of all the evidence, the parties held a jury 

instruction conference outside the presence of the jury. During 

the conference, the parties focused on the venue element 

of count I, sexual assault of a child in the first degree, and 
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count V, incest with a victim age 17 or younger. The disputed 

venue elements were addressed in jury instructions Nos. 5 

and 6.

The relevant portion of jury instruction No. 5 provided:

COUNT I

. . . .

The material elements which the State must prove by 

evidence beyond a reasonable doubt, in order to convict 

the Defendant of the crime of First Degree Sexual Assault 

on a Child as charged in the Amended Information are:

1. That on or about January 1[,] 2017 through January 

31, 2017, the Defendant, Talon Lee, did subject [R.W.] to 

sexual penetration;

2. That Defendant, Talon Lee, (a) did so in Douglas 

County, Nebraska, or (b) brought [R.W.] into or out of 

Douglas County, Nebraska in the commission of the 

offense, or (c) did an act in Douglas County, Nebraska 

instigating, procuring, promoting, or aiding in the commission of the offense;

3. That at that time Talon Lee was nineteen years of 

age or older; and

4. That at that time, [R.W.] was under twelve years 

of age.

. . . .

COUNT V

. . . .

The material elements which the State must prove by 

evidence beyond a reasonable doubt, in order to convict 

the Defendant of the crime of Incest of a Victim 17 or 

Under as charged in the Amended Information are:

1. That on or about January 1, 2017 through January 

31, 2017, the Defendant Talon Lee did knowingly engage 

in sexual penetration with [R.W.];

2. That Defendant, Talon Lee, (a) did so in Douglas 

County, Nebraska, or (b) brought [R.W.] into or out of 

Douglas County, Nebraska in the commission of the 
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offense, or (c) did an act in Douglas County, Nebraska 

instigating, procuring, promoting, or aiding in the commission of the offense;

3. That Talon Lee and [R.W.] are parent and child; and

4. That at that time, [R.W.] was under eighteen years 

of age.

Also related to the venue element of counts I and V, jury 

instruction No. 6 provided:

According to the law in the State of Nebraska, when 

an offense is committed in this state, in a car or motor 

vehicle, the accused may be tried in any county through, 

on or over which the vehicle passes in the course of its 

trip, or in the county in which the trip terminates.

Lee objected solely to the venue element definitions for 

counts I and V of jury instruction No. 5, arguing that it incorrectly incorporated language from Neb. Rev. Stat. § 29-1301.01 

(Reissue 2016). Lee argued that this statute was inapplicable 

to this case, because it applies only when an offense is alleged 

to have occurred in different counties within the state, which 

was not the case here. Lee argued that this case involved 

the possibility that Lee “crosse[d] a state line” in the process of committing the alleged offense, but that it did not 

involve an allegation that it occurred in two different counties within Nebraska. As such, Lee argued that § 29-1301.01 

was inapplicable.

The State disagreed and argued that jury instruction No. 

5 correctly incorporated § 29-1301.01. The State noted that 

there was no evidence the offense in Lee’s car occurred in 

Iowa or some other state, but argued that instruction No. 5, as 

written, nonetheless appropriately addressed the notion that a 

portion of the offense could have occurred in Douglas County 

while another portion of the offense could have occurred 

elsewhere.

Ultimately, the district court agreed with the State and overruled Lee’s objection to jury instruction No. 5. The court read 

jury instruction No. 5 as written.
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Neither party objected to jury instruction No. 6. Jury 

instruction No. 6 incorporated the language of Neb. Rev. Stat. 

§ 29-1301.02 (Reissue 2016), which relatedly addresses venue 

for crimes committed on moving means of transportation.

6. Jury Verdict and S

The jury found Lee guilty as charged on all five counts. In 

June 2018, the sentencing hearing was held. The district court 

reviewed the presentence investigation report and considered 

Lee’s age, mentality, education, experience, social and cultural background, criminal record, and law-abiding conduct, 

as well as the motivations for these offenses and the nature of 

the offenses, including the presence or absence of violence. 

Based on this information, the court determined that Lee was 

a dangerous sexual predator and sentenced him as follows: 50 

years’ to life imprisonment on count I, sexual assault of a child 

in the first degree; 50 years’ to life imprisonment on count II, 

sexual assault of a child in the first degree; 20 to 50 years’ 

imprisonment on count III, attempted sexual assault of a child 

in the first degree; 2 to 3 years’ imprisonment on count IV, 

sexual assault of a child in the third degree; and 10 to 20 years’ 

imprisonment on count V, incest with a victim age 17 or under. 

Lee’s sentences were ordered to run consecutively, resulting in 

an aggregate period of 100 years’ to life imprisonment, plus 

an additional term of 32 to 73 years’ imprisonment. Lee was 

also ordered to register as a sex offender under Nebraska’s Sex 

Offender Registration Act.

III. ASSIGNMENTS OF ERROR

Lee assigns, restated and renumbered, that the district court 

erred by (1) granting the State’s motion to allow evidence that 

Lee sexually assaulted R.W. in the State of Iowa, (2) denying 

Lee’s Rule 412 motion, (3) giving erroneous and misleading 

jury instructions which relieved the State from proving essential elements of the crimes charged, (4) failing to give a limiting instruction, and (5) imposing excessive sentences.
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He also assigns that he received ineffective assistance of 

counsel at trial, because his trial counsel did not perform at 

least as well as a criminal lawyer with ordinary training and 

skill in the area and such deficient performance prejudiced 

his defense. Lee specifically asserts that his trial counsel (1) 

made inappropriate comments to the prosecutor and Lee, (2) 

did not review discovery with him, (3) told Lee that he could 

not call witnesses he wished to call at trial, (4) failed to 

raise a Batson1 challenge, (5) failed to litigate Lee’s motion 

to sever charges, and (6) failed to object to improper hearsay evidence.

IV. STANDARD OF REVIEW

[1] An appellate court reviews for abuse of discretion a trial 

court’s evidentiary rulings on the admissibility of a defendant’s other crimes or bad acts under Rule 404(2), or under the 

inextricably intertwined exception to the rule.2

[2,3] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; 

judicial discretion is involved only when the rules make discretion a factor in determining admissibility.3

 Where the Nebraska 

Evidence Rules commit the evidentiary question at issue to 

the discretion of the trial court, an appellate court reviews the 

admissibility of evidence for an abuse of discretion.4

[4] In reviewing claims of ineffective assistance of counsel 

on direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to 

conclusively determine whether counsel did or did not provide 

effective assistance and whether the defendant was or was not 

prejudiced by counsel’s alleged deficient performance.5

1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

2 State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

3 Id.

4 Id.

5 State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
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[5] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision.6

[6] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.7

V. ANALYSIS

Lee argues that the district court erred by (1) granting the 

State’s motion to allow evidence that Lee sexually assaulted 

R.W. in the State of Iowa, (2) denying Lee’s Rule 412 motion, 

(3) giving erroneous and misleading jury instructions which 

relieved the State from proving essential elements of the 

crimes charged and failing to give a limiting instruction, and 

(4) imposing excessive sentences. Lee also asserts that he 

received ineffective assistance of counsel throughout his proceedings below. We affirm the decision of the district court.

1. Inextricably Intertwine

At the outset, Lee assigns that the district court abused its 

discretion by granting the State’s motion in limine, allowing 

it to admit evidence regarding R.W.’s sexual assault allegations that occurred in Iowa, and, relatedly, overruling Lee’s 

renewed objections at trial to the admission of that evidence. In its order on the motion in limine, the district court 

concluded:

[T]he evidence of sexual abuse in Council Bluffs[,] Iowa 

is inextricably intertwined with the other allegations of 

sexual abuse [Lee] perpetrated on his daughter over the 

period of time alleged by the State and is so blended or 

connected to the charged crimes that it will be necessary to show a complete and coherent picture of this 

relationship.

6 State v. Paez, 302 Neb. 676, 925 N.W.2d 75 (2019).

7 State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).
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Lee, however, claims the evidence regarding the alleged incident of sexual assault in Iowa was inadmissible under Rule 

404 and should have been excluded at trial. Specifically, Lee 

argues that the court failed to conduct a hearing pursuant to 

Rule 404(3) finding clear and convincing evidence of the 

other crime.

[7,8] We agree with the district court that Rule 404 did 

not apply, because the alleged Iowa incident was inextricably 

intertwined with the crimes charged.8 Further, since Rule 404 

did not apply, the court was not required to conduct a hearing 

under Rule 404(3). Inextricably intertwined evidence includes 

evidence that forms part of the factual setting of the crime, is 

so blended or connected to the charged crime that proof of the 

charged crime will necessarily require proof of the other crimes 

or bad acts, or is necessary for the prosecution to present a 

coherent picture of the charged crime.9 The State is entitled to 

present a coherent picture of the facts of the crime charged, 

and evidence of other conduct that forms an integral part of 

the crime charged is not rendered inadmissible under Rule 404 

merely because the acts are criminal in their own right, but 

have not been charged.10

The State asserts that evidence of the Iowa incident was 

integral to the development of an accurate timeline in this 

case.11 The State asserts that without the evidence of the Iowa 

incident, it would have appeared that it took R.W. much longer 

to disclose the sexual abuse than it actually did. Further, the 

absence of such evidence would have created a misleadingly 

incoherent picture that would have adversely impacted R.W.’s 

credibility.12 We agree.

8 See State v. Burries, supra note 2.

9 See id.

10 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v. Kelly, 

20 Neb. App. 871, 835 N.W.2d 79 (2013).

11 See id.

12 See id.
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Our precedent shows that we have upheld the admission 

of evidence under the inextricably intertwined rule when the 

defendant’s other bad acts showed his pattern of sexually abusing a child or exposing the child to sexually explicit material.13

For example, in State v. Baker,

14 we held that the inextricably 

intertwined exception applied where the defendant’s other bad 

acts showed his pattern of sexually abusing the victim. In 

Baker, the State’s evidence included the victim’s testimony 

that the defendant had threatened her with harm if she reported 

him, the mother’s testimony that the defendant threatened her 

and physically assaulted her if she did not bring the victim to 

the bedroom at his direction, and the mother’s testimony that 

the defendant became sexually aroused while watching the victim administer a massage. The defendant claimed this evidence 

was inadmissible under Rule 404(2), but we concluded the 

State was entitled to present this evidence as part of a coherent 

factual setting of the crime.

We likewise conclude here that the district court did not 

abuse its discretion in determining the evidence of a subsequent sexual assault involving the same victim was inextricably 

intertwined with the charged offenses. The evidence adduced 

at trial established that R.W. and her mother were living in 

Omaha with Kelly, one of R.W.’s mother’s friends, in January 

2017 when Lee sexually assaulted R.W. in his car, which was 

the first incident of sexual assault that occurred. Throughout 

R.W.’s testimony, she had difficulty providing the exact dates 

of the subsequent sexual assaults at M.B.’s house. Nevertheless, 

R.W. recalled that the incident in Iowa was the last incident 

that had occurred. This information was significant, because 

Hernandez testified that when R.W. spoke with her at the emergency room on June 23, 2017, R.W. told Hernandez that the 

most recent incident occurred about 1 month earlier and that 

13 See, e.g., State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010); State v. 

McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).

14 State v. Baker, supra note 13. See, also, State v. Cullen, 292 Neb. 30, 870 

N.W.2d 784 (2015).
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another incident occurred about 2 months earlier. This information in its entirety creates a timeline demonstrating that the 

sexual assaults charged occurred in Omaha, lending coherence 

as to why R.W. would have reported to Hernandez that the last 

assault occurred around May 2017.

R.W.’s testimony of the Iowa incident forms the factual 

setting of the charged offenses and is necessary to present a 

complete and coherent picture of the facts of this case. Such 

evidence showed a pattern of Lee’s sexually abusing R.W. 

and exposing her to sexually explicit material. Based on this, 

it cannot be said that the district court abused its discretion in 

admitting the testimony regarding the alleged Iowa incident 

into evidence.

2. Defendant’s Rule 412 

Next, Lee assigns that the district court abused its discretion in denying Lee’s motion under Rule 412 seeking to admit 

testimony regarding R.W.’s sexual assault allegation against 

her brother. Lee argues that he was prejudiced by the district court’s denial of his motion, because evidence of R.W.’s 

alleged sexual assault by her brother would be relevant to show 

a “prior source of [R.W.’s] ‘sexual knowledge.’”15 The State 

opposed the motion and argued that this evidence was more 

prejudicial than probative because it would result in a “trial 

within a trial.” The district court agreed with the State’s argument and reasoned, “How do we know her brother didn’t do all 

of these things? . . . I don’t think we’re going to put [R.W] on 

trial on that issue.”

In denying Lee’s request, the district court stated:

There is no evidence the acts of [R.W.’s brother] have 

any relevance to the sexual assault committed by [Lee] 

or that the sexual behavior of R.W. incident to being 

assaulted by [her brother] in any way contributed to any 

physical injury of R.W. The court does not find the same 

to be relevant nor material to the charges against [Lee] 

15 See brief for appellant at 32.
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nor would exclusion of this evidence violate the constitutional rights of [Lee].

It is apparent from the hearing on Lee’s motion and the district 

court’s subsequent order that it excluded the evidence upon 

both Rule 403 and Rule 412 grounds.

Lee claims that this case is similar to State v. Lavalleur,

16

in which we held it was reversible error to exclude evidence 

of other independent sexual acts involving the victim. In 

Lavalleur, the State had charged the defendant with sexually 

assaulting the victim, who was a friend and coworker of the 

defendant. At trial, the defendant sought to introduce evidence 

that the victim was involved in an intimate relationship with 

a third party on the date in question, which, according to the 

defense, gave the victim a motive to falsely report the sexual 

assault against the defendant to preserve her relationship with 

the third party. The trial court excluded the evidence, finding that it was irrelevant under Rule 403 and inadmissible 

under Rule 412. In reversing, we explained that Rule 412 

generally prohibits evidence only of sexual predisposition or 

“‘sexual behavior,’” which we explained refers to specific 

instances of conduct.17 We explained that “‘[i]f questioning about [a] subject were to lead to evidence or questions 

about details of particular acts, encounters, or practices, then 

such evidence and quests are indeed covered by rape shield 

legislation . . . .’”18 But, we reasoned that the mere fact that 

the complaining witness is in an ongoing relationship raises 

no such concerns about details of particular acts, encounters, 

or practices, because being in an ongoing relationship is not 

ordinarily described as “‘sexual conduct,’” even if the relationship involves ongoing sexual intimacy.19 Accordingly, we 

found that the evidence the defendant sought to introduce was 

16 State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

17 Id. at 111, 853 N.W.2d at 212.

18 Id.

19 Id.
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not precluded and that it was both relevant and material to the 

defense that the victim had a motive to lie about the nature 

of her sexual encounter with the defendant to “dispel any air 

of infidelity.”20

Here, unlike Lavalleur, the defense was not seeking to 

attack the credibility of R.W. by showing that she was involved 

in another ongoing relationship which gave her a motive to lie 

about the allegations against Lee. Rather, Lee sought to introduce this evidence to show that there was some other conceivable basis for R.W.’s sexual knowledge. Lee asserts that the 

evidence of R.W.’s prior alleged sexual abuse by her brother 

was particularly relevant in this case because, without this 

evidence, “the only conclusion for the jury to make is that this 

allegation against [Lee] must have occurred or how else would 

this child know about this sort of behavior.”21

Such evidence requires a finding of admissibility under both 

Rule 403 and Rule 412. Here, the district court agreed with the 

State’s argument that the evidence would be more prejudicial 

than probative and thus was not admissible under Rule 403. We 

do not believe the district court abused its discretion in reaching that conclusion. R.W.’s brother had not been convicted or 

adjudicated of the allegations that he had sexually assaulted 

R.W. As a result, admission of the evidence would have led to 

a potentially distracting “trial within a trial” which would have 

substantially risked confusing the issues and misleading the 

jury. Moreover, an inquiry into whether R.W. was also abused 

by her brother would have done nothing to offset M.B.’s testimony that Lee had abused her.

3. Jury Instruct

Next, Lee asserts that the district court erred in giving jury 

instruction No. 5, because it was misleading and relieved the 

State from proving an essential element of the crimes charged. 

20 Id. at 115, 853 N.W.2d at 214.

21 Brief for appellant at 32-33.
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Specifically, Lee asserts that the district court erred by failing 

to properly instruct the jury regarding venue on both count I 

(first degree sexual assault of R.W.) and count V (incest of 

R.W.), both of which pertained to the first incident in Lee’s car 

in January 2017.

Relatedly, Lee assigns that the district court erred by failing to give a limiting instruction to the jury on the importance 

of keeping separate during its deliberations the charges from 

the evidence related to those charges. However, based on the 

record, Lee did not object to the court’s jury instructions on this 

basis at the trial court level. He made an objection solely as to 

jury instruction No. 5. An issue not presented to or decided on 

by the trial court is not an appropriate issue for consideration 

on appeal.22 Because this assignment was not raised below, we 

address only Lee’s assignment of error regarding jury instruction No. 5.

[9-11] In an appeal based on a claim of an erroneous jury 

instruction, the appellant has the burden to show that the 

questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant.23 All the jury 

instructions must be read together, and if, taken as a whole, 

they correctly state the law, are not misleading, and adequately 

cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.24

Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision.25

Lee maintains that jury instruction No. 5 incorrectly 

instructed the jury regarding venue on counts I and V, because 

the instruction did not limit the venue to Douglas County, or 

even Nebraska. He claims that jury instruction No. 5 allowed 

22 Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019).

23 State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).

24 Id.

25 State v. Paez, supra note 6.
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the jury to find him guilty on counts I and V if they believed 

that these counts occurred “anywhere,” which effectively 

relieved the State of its burden to prove venue on these 

counts.26 He argues that the overbreadth of this instruction was 

especially prejudicial because of the evidence presented at trial 

regarding Lee’s alleged sexual abuse of R.W. in Iowa.

Jury instructions Nos. 5 and 6, read together, set forth the 

elements for venue in this case. Jury instruction No. 5, specifically subsection 2, incorporated the language of § 29-1301.01 

and provided that one of the material elements which must be 

proved was

[t]hat Defendant, Talon Lee, (a) did so in Douglas County, 

Nebraska, or (b) brought [R.W.] into or out of Douglas 

County, Nebraska in the commission of the offense, or 

(c) did an act in Douglas County, Nebraska instigating, 

procuring, promoting, or aiding in the commission of 

the offense.

Jury instruction No. 6 similarly incorporates language from 

§ 29-1301.02 and provided: “[W]hen an offense is committed in this state, in a car or motor vehicle, the accused may 

be tried in any county through, on or over which the vehicle 

passes in the course of its trip, or in the county in which the 

trip terminates.”

Reading jury instructions Nos. 5 and 6 together, we disagree 

with Lee’s argument. When these instructions are read in conjunction, they correctly instruct the jury that the offenses that 

occurred in a motor vehicle (counts I and V) must have been 

“committed in this state.” Further, based on the record before 

us, there was no evidence presented that would indicate that 

the relevant incident occurring between Lee and R.W. in his 

car occurred in Iowa or a state other than Nebraska, leaving no 

basis for a jury to reach that conclusion. As such, we conclude 

that Lee was not prejudiced as to necessitate a reversal on 

these grounds.

26 Brief for appellant at 44.
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4. Excessive Sen

[12] Lee next assigns that that the district court erred by 

imposing excessive sentences. When a trial court’s sentence 

is within the statutory guidelines, the sentence will be disturbed by an appellate court only when an abuse of discretion 

is shown.27

On counts I and II, Lee was found guilty of first degree 

sexual assault of a child, which is a Class IB felony punishable by a mandatory minimum of 20 years’ imprisonment and 

a maximum of life in prison.28 Lee was sentenced to 50 years’ 

to life imprisonment on each count of this offense.

On count III, Lee was found guilty of attempted first degree 

sexual assault of a child, which is a Class II felony punishable 

by 1 to 50 years’ imprisonment.29 Lee was sentenced to 20 to 

50 years’ imprisonment on this offense.

On count IV, Lee was found guilty of third degree sexual 

assault of a child, which is a Class IIIA felony punishable by 

up to 3 years’ imprisonment and 18 months’ postrelease supervision, a $10,000 fine, or both.30 Lee was sentenced to 2 to 3 

years’ imprisonment on this offense.

Finally, on count V, Lee was found guilty of incest with a 

victim age 17 or under, which is a Class IIA felony punishable 

by 0 to 20 years’ imprisonment.31 Lee was sentenced to 10 to 

20 years’ imprisonment on this offense.

Running consecutively, Lee’s sentences equate to an aggregate period of 100 years’ to life imprisonment, plus an additional 32 to 73 years’ imprisonment.

Lee does not contest that his sentences were within the statutory limitations. He solely argues that the district court abused 

27 See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

28 See Neb. Rev. Stat. §§ 28-319.01 and 28-105 (Reissue 2016).

29 See § 28-319.01, Neb. Rev. Stat. § 28-201(4)(a) (Reissue 2016), and 

§ 28-105.

30 See Neb. Rev. Stat. §§ 28-320.01 (Reissue 2016) and 28-105.

31 See Neb. Rev. Stat. §§ 28-703 (Reissue 2016) and 28-105.
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its discretion by imposing an unjustly lengthy total sentence as 

compared to other Nebraska cases where defendants were convicted of similar crimes. Consequently, Lee’s sentences will be 

disturbed only upon a finding of abuse of discretion.

[13,14] Abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.32 When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law-abiding 

conduct, and (6) motivation for the offense, as well as (7) 

the nature of the offense and (8) the violence involved in the 

commission of the crime.33 The appropriateness of a sentence 

is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and 

attitude and all the facts and circumstances surrounding the 

defendant’s life.34

There is no evidence in the record demonstrating that the 

sentencing court considered inappropriate or unreasonable factors in forming Lee’s sentences. The district court reviewed 

the presentence investigation report, which revealed Lee had 

an extensive criminal history. The district court also considered Lee’s age, mentality, education, experience, social and 

cultural background, and law-abiding conduct, as well as the 

motivations for these offenses, the nature of the offenses, and 

the presence or absence of violence, including sexual violence. 

Considering the totality of this information, the court determined that Lee was a dangerous sexual predator and imposed 

his above-described sentences.

We cannot conclude that the district court made its decision based upon reasons that were untenable or unreasonable, 

32 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).

33 State v. Huff, supra note 27.

34 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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nor was the district court’s action clearly against justice or 

conscience, reason, and evidence. Therefore, we conclude that 

the sentencing court did not abuse its discretion and that Lee’s 

sentences are not excessive.

5. Ineffective Assistance of 

Lastly, Lee asserts a number of claims of ineffective assistance of trial counsel. Specifically, he argues that (1) he overheard his trial counsel talking with the prosecutor and indicating she believed Lee was guilty, and that when he confronted 

her about it, she told him to “go back to his cell and taste his 

own semen and see what it tastes like”35; (2) his trial counsel 

did not review discovery with him; (3) his trial counsel told 

him that he could not call any other witnesses that he wished 

to call at trial; (4) his trial counsel failed to raise a Batson36

challenge, which he believes was appropriate because there 

was “not a single African American” in the venire37; (5) he 

was prejudiced by his trial counsel’s deficient performance by 

failing to litigate Lee’s motion to sever charges; and (6) he was 

prejudiced by his trial counsel’s deficient performance by failing to object to improper hearsay and opinion testimony from 

Cirian, the forensic interviewer.

[15] Lee has new counsel on direct appeal. When a defendant’s trial counsel is different from his or her counsel on direct 

appeal, the defendant must raise on direct appeal any issue of 

trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record.38 Once raised, the 

appellate court will determine whether the record on appeal 

is sufficient to review the merits of the ineffective performance claims.39

35 Brief for appellant at 50.

36 Batson v. Kentucky, supra note 1.

37 Brief for appellant at 51.

38 State v. Chairez, supra note 7.

39 Id.
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In order to know whether the record is insufficient to 

address assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and argue deficiency 

with enough particularity for (1) an appellate court to make 

a determination of whether the claim can be decided upon 

the trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether 

the claim was brought before the appellate court.40 When a 

claim of ineffective assistance of trial counsel is raised in a 

direct appeal, the appellant is not required to allege prejudice; 

however, an appellant must make specific allegations of the 

conduct that he or she claims constitutes deficient performance 

by trial counsel.41

Lee and the State agree that the record is insufficient to 

address four of Lee’s assertions on direct appeal that trial 

counsel was ineffective, made under the heading “Defendant’s 

preservation of Post Conviction Relief issues.”42 In this regard, 

Lee asserts, first, that he overheard trial counsel telling the 

prosecutor she believed he was guilty and, when confronted 

about the conversation, told Lee to “go back to his cell and 

taste his own semen and see what it tastes like.” Second, Lee 

contends that trial counsel refused to allow him to review the 

entire discovery in the case, including the Project Harmony 

reports and the video-recorded forensic interview, which he 

asserts impeded his ability to assist in his defense and would 

have led Lee to insist that trial counsel call “adverse witnesses, 

including . . . Kelly who was purportedly present during an 

alleged assault.”43 Third, Lee argues that trial counsel told him 

he could not call any other witnesses in his defense, which 

prevented him from adducing the testimony of “adverse witnesses,” including Kelly. Fourth, Lee asserts trial counsel was 

40 See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

41 See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

42 Brief for appellant at 50.

43 Id. at 51.
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ineffective by failing to raise a Batson challenge to a jury 

consisting of “not a single African American” and by failing to 

preserve any Batson challenge by not having a record made of 

the lack of diversity of the venire.

We find these assertions sufficient to preserve the alleged 

claims of deficiency, with one caveat. Appellate counsel 

must give on direct appeal the names or descriptions of any 

uncalled witnesses forming the basis of a claim of ineffective assistance of trial counsel.44 Otherwise, a potential 

postconviction court would be unable to identify whether a 

claim based on the alleged failure to call a particular witness 

was preserved on direct appeal.45 Here, appellate counsel 

raised only the failure to call witness Kelly with sufficient 

specificity. Any other claim as to “adverse witnesses” has not 

been preserved.

As we have held in countless cases where the record on 

direct appeal was insufficient for assessing ineffective assistance of counsel claims, the issue that often arises is that the 

trial record reviewed on appeal is “devoted to issues of guilt 

or innocence” and does not usually address issues of counsel’s 

performance.46 The same can be said in this case. The record on 

appeal is simply devoid of any evidence of the circumstances 

and facts regarding the four contentions of ineffective assistance of counsel that were adequately presented. Therefore, we 

decline to reach these claims on direct appeal based on the 

insufficiency of the record before us.

However, we find that the record is sufficient to address on 

direct appeal Lee’s claims that his trial counsel was deficient 

by failing to (1) litigate Lee’s motion to sever charges and 

(2) object to improper hearsay and opinion testimony from 

Cirian. Where the record is sufficient to address the ineffective assistance of counsel claim, an appellate court reviews 

44 See State v. Abdullah, supra note 40.

45 See id.

46 Id. at 128, 853 N.W.2d at 864.
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the factual findings of the lower court for clear error.47 But 

with regard to the questions of counsel’s performance or 

prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

48 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision.49

[16-18] To prevail on a claim of ineffective assistance of 

counsel under Strickland, the defendant must show that his or 

her counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense.50 To 

show deficient performance, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary 

training and skill in criminal law.51 To show prejudice, the 

defendant must demonstrate a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding would have been different.52

(a) Motion to Sever

[19] Lee contends that the charges involving R.W. should 

have been severed from the charges involving M.B., so his 

trial counsel should have pursued their motion to sever and 

was ineffective in failing to do so. However, based on the 

record before us, trial counsel did in fact “litigate” and “pursue” Lee’s motion to sever. Lee’s trial counsel filed a four-page 

motion detailing the requested severances. At the beginning of 

a pretrial hearing on March 15, 2018, trial counsel stated that 

she wished to withdraw the motion, but then she argued the 

motion toward the end of these pretrial hearings. Trial counsel 

47 State v. Chairez, supra note 7.

48 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

49 State v. Filholm, supra note 41.

50 Id.

51 State v. Chairez, supra note 7.

52 Id.
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maintained that a severance was warranted and laid out the 

requested severances. The district court subsequently denied 

severance via a written order. Thus, this motion to sever was in 

fact argued and ruled upon. Trial counsel cannot be ineffective 

for failing to do that which the record affirmatively establishes 

was done.

(b) Failure to Object to 

Cirian’s Testimony

[20] Regarding counsel’s failure to object to Cirian’s testimony on hearsay grounds, Lee argues that his trial counsel should have objected to Cirian’s testimony about what 

actions were required to be taken or what protocols were triggered in response to R.W.’s and M.B.’s disclosures, because 

this was inadmissible “derivative hearsay.”53 Lee cites no 

authority to support this “derivative hearsay” argument, nor 

are we aware of any precedent or authority that indicates 

such evidence constitutes inadmissible “derivative hearsay.” 

To the contrary, the law generally provides that statements 

are not hearsay if they are offered to show the effect on 

the listener.54

Cirian’s testimony regarding the requisite protocols when 

certain disclosures by the interviewed children are made was 

nothing more than her description of the steps she was required 

to take during the girls’ interview process. Cirian testified only 

as to her actions as a result of the disclosures made to her during these interviews. We find that Cirian’s testimony regarding 

the actions that were required to be taken and the protocols 

that were triggered in response to the girls’ disclosures was not 

hearsay. As such, as a matter of law, Lee’s trial counsel was not 

deficient for failing to object to Cirian’s testimony as “derivative hearsay.”

53 See brief for appellant at 39.

54 See, State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015); State v. McCave, 

282 Neb. 500, 805 N.W.2d 290 (2011).
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Lee also argues that trial counsel was ineffective for failing to object to Cirian’s allegedly improper opinion testimony 

when Cirian testified that the demeanor of R.W. and M.B. 

was consistent with the demeanor of a victim of sexual abuse. 

Lee argues that this testimony amounted to improper vouching for the credibility of the victims and was an improper 

opinion.

The record reflects that when the State initially questioned 

Cirian regarding the girls’ demeanor and its consistency with 

children alleging sexual abuse, Lee’s trial counsel objected 

to the testimony on the basis of relevance. Such an objection 

necessarily encompassed the propriety of Cirian’s opinion.55

Lee’s trial counsel was not ineffective for failing to object 

to Cirian’s conclusion, because the record demonstrates that 

such an objection was made. Moreover, we conclude that 

Cirian did not opine as to the reliability or the credibility of 

the girls’ statements or allegations made during their respective interviews.

VI. CONCLUSION

For the reasons set forth above, we affirm the decision of the 

district court.

Affirmed

55 See State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013). See, also, 

In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

Cassel, J., concurring.

I write separately only to remind the practicing bar that 

assignments of error on direct appeal regarding ineffective 

assistance of trial counsel must specifically allege deficient 

performance and that an appellate court will not scour the 

remainder of the brief in search of such specificity.1 Our decision making this rule explicit was released on April 19, 2019.

1 See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
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In the appeal before us, Lee’s sole assignment of error relating to ineffective assistance stated only, “Defendant’s preservation of Post Conviction Relief issues.” But for having been 

filed on December 21, 2018, it clearly would have failed the 

specificity requirement. Although we have declined to apply 

the specificity requirement retroactively,2 that time is already 

gone for briefs being filed now. Counsel should understand that 

briefs filed after April 19, 2019, which fail to comply may have 

consequences beyond loss of such claims.3

2 See State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).

3 See Neb. Ct. R. of Prof. Cond. § 3-501.1 (rev. 2017).